February 28, 1997
Adam M. Sacks, Esq.
11694 Deerfield Drive
Oakton, VA 22124
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.
Dear Mr. Sacks:
I have received your letter of January 22, which reached this office on February 6.
You have complained with respect to a response to your request for records by the Division of Parole. As I understand the matter, you requested the entire file concerning an individual who had been paroled but who died of a drug overdose a month after his release. In response to the request, you were informed that "you may be entitled to the records", but that "a signed, notarized release from the subject or his estate representative (short form) is required."
In this regard, I offer the following comments.
First, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.
Second, although several of the grounds for denial might be applicable, it would appear that the provision of primary consideration is §87(2)(b). That provision permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Section 89(2)(b) includes a series of exemptions of unwarranted invasions of personal privacy. There are no decisions rendered under the Freedom of Information Law of which I am aware that have dealt squarely with the privacy of the deceased. Having discussed the issue with national experts, there is no clear consensus. Some contend that when a person dies, the ability of an agency to withhold records to protect his or her privacy disappears. Others suggest that privacy of a deceased should be protected for a certain, arbitrary period of time (i.e., two years, five years, ten years, etc.). Perhaps the greatest degree of agreement involved the point of view that records about a deceased are generally public, but that those portions which if disclosed would "disgrace the memory" of the deceased may be withheld.
From my perspective, the last suggestion is most appropriate. I believe that a great deal of information pertaining to a deceased essentially becomes innocuous by virtue of his or her death and must be disclosed. Depending on their nature, however, disclosure of intimate details of an individual's life might indeed disgrace his or her memory, and arguably, those kinds of details might justifiably be withheld. In addition, depending upon the nature of the records, there may be privacy considerations relating to the family of the deceased as well. I have no personal knowledge regarding the content of the records in question. Nevertheless, notwithstanding one's death, in conjunction with the preceding commentary, I believe that some aspects of the records pertaining to the deceased might justifiably be withheld.
Aside from issues relating to the deceased or his family, the Division of Parole might also maintain records identifying the victim or victims and their relations. In those instances, there would also be privacy considerations, and the Division could in my view withhold to the extent authorized by §87(2)(b).
Also pertinent may be §87(2)(g). That provision permits an agency to withhold records that:
"are inter-agency or intra-agency materials which are not:
i. statistical or factual tabulations or data;
ii. instructions to staff that affect the public;
iii. final agency policy or determinations; or
iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."
It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.
Within a parole file might be communications between staff of the Division consisting of evaluations or opinions, for example, that could be withheld. Similarly, frequently recommendations concerning granting parole are offered by prosecutors and others that also might fall within the scope of the exception.
In sum, while much of the material pertaining to the deceased parolee likely should be disclosed, for the reasons described in the preceding paragraphs, it is likely that other aspects of the records could justifiably be withheld.
I hope that I have been of assistance.
Robert J. Freeman
cc: David Molik